“Sister Wives” reality television show star Kody Brown and
his four wives can play house without fearing a possible police raid should
they ever return to Utah.
That's the crux of the ruling Federal Judge Clark Waddoups issued
from his chambers in Salt Lake City last Friday in the case of Brown and his four
wives, stars of the popular reality television show, “Sister Wives,” which
appears to decriminalize plural marriage.
For those convinced Armageddon is here for heterosexual,
monogamous marriage, rest easy: Waddoups’
ruling is far from being a full out victory for polygyny or any kind of plural
marriage and hardly spells the death knell of marriage as it’s traditionally
known, between one man and one woman.
One of the key considerations in the case, Waddoups said,
was that the Browns were not asking for legal recognition for the three
additional “wives” Kody claims.
What they were seeking – first and foremost – was the
ability to live in Utah, should they return, without fear of a police
raid.
Judge Waddoups didn’t overturn the U.S. Supreme Court’s 19th
century ruling outlawing polygamy.
All Waddoups said was adults, because they’re granted
freedom of religion, a First Amendment right, are allowed to practice their
faith. If that means they want to
live with other, unmarried adults – even have a relationship with them that
looks like a marriage – they may do so without fearing the police will break up
their families or jail them.
The biggest effect last week’s ruling has is taking away a tool
police and district attorneys in Utah use to investigate polygyny –
cohabitation. In Utah, up until
Waddoups’ ruling a week ago, it was illegal for unmarried adults to live with
one another.
“A person is guilty of bigamy when, knowing he has a husband
or wife or knowing the other person has a husband or wife, the person purports
to marry another person or cohabits with another person,” Utah’s law against
cohabitation read until Waddoups’ ruling.
Waddoups amended the statute by removing its last five words.
In addition, says the Browns’ attorney, Jonathan Turley, the
ruling decriminalizes the Browns’ plural marriages – as well as other plural
marriages – because of their faith as Fundamentalist Latter-day Saints, which
continues to believe in polygyny even though the mainstream Church of Jesus
Christ of Latter-day Saints stopped recognizing it more than 100 years ago.
In his 91-page ruling, Waddoups reviewed many of the same
legal arguments that Phil Kilbride and I discussed in our book, Plural Marriage for our Times: A Reinvented Option? Second Edition, including the
infamous Reynolds decision of 1879 by the U.S. Supreme Court prohibiting
polygamy because it “has always been odious among the northern and western
nations of Europe, and, until the establishment of the Mormon Church, was
almost exclusively a feature of the life of Asiatic and of African people.”
“In other words, the social harm was introducing a practice
perceived to be characteristic of non-European people – or non-white races –
into white American society,” wrote Waddoups in his critique of the Reynolds
decision.
He also took issue with how the Supreme Court’s ruling is applied
today, saying, “In the religious cohabitation at issue in this case … the
participants have ‘consciously chosen to enter into personal relationships that
they knew would not be legally recognized as marriage even though they used
religious terminology to describe the relationships.’”
Waddoups also discussed the most controversial case in
recent Supreme Court history, Lawrence v. Texas, which essentially made all
sexual behavior between consenting adults legal, saying, the Browns’ “arguments
about the meaning and implications of Lawrence for Utah’s ability to
criminalize their private conduct of religious cohabitation are very
persuasive.”
The judge noted that life has changed, saying that 42
percent of Utah residents between the ages of 18 and 64 were unmarried and that
30 to 60 percent of them were living with one another.
This goes to a point that Salt Lake City civil rights
attorney Rodney Parker told me: If
Utah were serious about prosecuting unmarried adults living together, many of
his clients would be jailed.
Indeed, around the country, the U.S. Census Bureau estimates
there are about 8 million unmarried, opposite gender couples living together
and nearly 40 percent of them are bringing up children.
Finally, Dr. Kilbride and I argued that in a time when
marriage and family life gives every appearance of being threatened – either
because people aren’t marrying or they’re divorcing, leaving children in the
hands of their former spouse – plural marriage might very well be the antidote
to fix these problems.
Waddoups appears to agree, writing that Utah’s ban on
prosecuting “adulterous cohabitation” (sex between a man and woman without any
commitment to ever marry) but doing so to those couples who practice “religious
cohabitation” (committed to one another as husband and wife but without the
marriage license) seems “counterproductive to the goal of strengthening or protecting
the institution of marriage” and, thus, family life.
In the United States, according to the Census Bureau, there
are two distinct minorities: Married
couples make up less than half of all households, about 48 percent, and less
than 20 percent of all households consist of a married couple, where both the
husband and wife have a genetic connection to the children they’re bringing up.
It’s difficult to see how defending heterosexual marriage will
improve these numbers. The more likely
scenario, in the coming years, is that plural marriage and same-gender marriage
will live alongside heterosexual, monogamous marriage.
While I continue to miss Phil Kilbride’s enthusiasm for the
topic we researched and wrote about, I’m sure he takes as much satisfaction as
I do in knowing Judge Waddoups used many of the same legal arguments we
discussed in support of plural marriage.
Post Script: Phil Kilbride passed away about a month
after our book, “Plural Marriage for our Times: A Reinvented Option? Second Edition,” (Santa Barbara,
CA: Praeger Publishers, August
2012) was published, in September 2012.
He was a wonderful man, great scholar, loving father and a tremendous colleague. He’s very much missed.
You can buy the book here:
http://www.amazon.com/Plural-Marriage-Our-Times-Reinvented/dp/0313384789/ref=sr_1_1?s=books&ie=UTF8&qid=1387411021&sr=1-1&keywords=plural+marriage+for+our+times%3A++A+reinvented+option+second+edition
You can read the judge's ruling here:
http://www.scribd.com/doc/191414121/Sister-Wives-Ruling
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